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Appellate Division Sides With Petitioner in Dispute Over Compensability on Motion Trial

By on May 6, 2016 in Compensability with 0 Comments

It can be difficult to predict the outcome of appeals where the issue before the Judge of Compensation is credibility of witnesses as opposed to pure legal issues.  In Frank Hodson v. C. Abbonizio Contractors, Inc., A-2083-14T3 (App. Div. May 2, 2016), Mr. Hodson said that while working as a laborer on May 9 and May 10, 2013, he threw a traffic barrel and “felt a small click-like pop in his back.”  He finished his shift and did not notify his supervisor, Dan Trainer, of the injury because he was distracted when he was informed that a “crash truck” was hit by a vehicle, requiring him to respond immediately.

Hodson said he was sore while driving home that night and was in a lot of pain.  But he continued to work the next week.  Not until May 26, 2013 did he admit to notifying his employer.  He said his co-worker, Ray Batot, saw him limping on May 26, 2013 and asked him what was wrong.  Hodson said that he injured his back.  Hodson also said that he spoke with Tom Abbonizio and Trainer on May 26, 2013, informing them of his back injury.  Hodson saw a personal physician who provided him with two epidural injections after the accident.  He also was taking 10 milligrams of Percocet.

When his doctor took him out of work, Hodson called Human Resources and was informed that he could not collect workers’ compensation benefits because no incident report was filed.  Hodson was told to seek unemployment benefits.  He filed for those benefits through his family doctor, who certified that his injury was not work related.  Later petitioner filed a claim petition against Abbonizio and against his previous employer for a 2012 injury to his back and legs.

There were some inconsistencies that were brought up in trial.  Hodson admitted having Trainer’s cell phone number but said he did not call him because of the crash truck incident that was more pressing.  He also said he did not know that there were two hospitals he was permitted to go to in the event of a work injury, but he admitted that his co-worker Batot had been taken to one of those two hospitals on May 10, 2013 for Batot’s own work injury involving the crash truck.

Perhaps the most glaring discrepancy concerned prescription medications.  On direct examination, petitioner denied taking any prescription medications before the date of the alleged injury.  On cross examination he conceded that he was taking Lyrica for pain as of May 10, 2013, and he was also taking Percocet before May 10, 2013.  He had had prior back injuries and prior workers’ compensation claims.  Hodson then maintained that he increased his medications after May 10, 2013.

Petitioner contended that he told his family doctor, who treated him after the alleged incident on May 9 or May 10, 2013 that he injured his back throwing barrels.   However, Dr. Winfield put on the TDB application that his injury was not work related.  There is no indication in the record of this case that Dr. Winfield testified at trial.

Petitioner offered corroborating testimony from his co-worker, Batot, who said he was working with petitioner and saw him moving barrels on the day petitioner claimed to have hurt himself.  Batot also said he spoke with Tom Abbonizio about petitioner’s back issue.  Batot said he was injured on the same night as petitioner (Batot was driving the crash truck) but that earlier in the day he saw petitioner limping.

Two other lay witnesses testified at trial.  Ms. Carmen Ferrillo, HR Manager, said that petitioner told her the injury took place on May 14, 2013 (not May 10th).  She spoke with Trainer and was told petitioner never mentioned a work injury.  She denied telling petitioner to file for unemployment benefits.  For his part, Trainer said that he did not see petitioner move any barrels on May 10, 2013.  He said petitioner never informed him of a work injury.

One medical witness testified, Dr. Joseph Zerbo.  He said he saw petitioner on July 23, 2014.  Dr. Zerbo compared prior MRI films from 2011 with those of June 2013.  He said that there was a “worsening of the disease process” which the doctor attributed to the alleged work injury.

The Judge of Compensation, the Hon. Audrey Kernan, ruled for petitioner, requiring the payment of medical and temporary disability benefits, based primarily on her assessment of petitioner and Batot as being more credible than the other witnesses in this case.  She also credited the testimony of Dr. Zerbo. The Appellate Division affirmed on the basis that there was sufficient evidence to support the credibility findings of the Judge of Compensation.  While there was a potential dispute in this case between prior employers for previous back injuries and Abbonizio Contractors, the court left that issue for the future when the permanency issue should be reached.

The case demonstrates the difficulty respondents have when there is really no legal or medical issue in the case and the dispute centers on conflicting testimony of various witnesses. Based on this record, a judge of compensation could have made a convincing argument that the claim was not work related and never happened at all.  There was a plethora of inconsistencies and perhaps outright misrepresentations (such as not using pain medications before the accident) which would have formed a solid basis for denial.  But there was also strong testimony from a co-worker supporting the petitioner.

The lesson in cases like this is that the Judge of Compensation controls on credibility findings.  Appellate courts will not reverse unless there is insufficient evidence to support the decision of the Judge.  That is a high standard for either party to overcome on appeal.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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